On Aug. 17, 2010, the Michigan State Senate passed sweeping
reforms of Michigan's Environmental Remediation Program, known
as Part 201 of the Natural Resources and Environmental Protection
Act (NREPA). This proposed legislation is the result of years of
dialogue among various stakeholders and is an attempt to fix
problem areas in the Part 201 clean-up program that were not
working to the satisfaction of the MDNRE or the regulated
community. The proposed legislation now moves to the House, where
the New Economy Committee is expected to hold meetings on these
reforms, with possible action in the "lame duck" session.
While there is broad-based support for many of these proposals,
there are significant challenges which the Michigan legislature has
yet to address. Whether passage of this Part 201 legislation will
be a priority is still uncertain but we will continue to monitor
progress and report enactment of any significant reforms to
Michigan's Part 201 Environmental Clean-Up Program.
In the interim, the following are the significant aspects of the
Senate Amendments to the Michigan Environmental Clean-Up
Program:
Baseline Environmental Assessment (BEA will be
preserved but substantially replaced by the Federal "All
Appropriate Inquiry" and bona fide prospective purchaser
provisions; there will be no process for BEA approval by MDNRE and
no requirement that a "baseline" be established to
distinguish new releases from old contamination (although this may
still be good practice).
No Further Action (NFA) process will provide for
clean-up completion or closure which may follow self-implemented
remedial action or MDNRE-approved Response Activity Plan; MDNRE has
150 days to review NFA requests or Response Activity Plans (180
days if the plan is subject to public review and comment), or they
will be deemed approved automatically.
Clean-Up Criteria will be simplified to
"Residential" and "Non-Residential" (f/k/a
Industrial); site-specific clean-up criteria may be allowed;
specific changes will clarify groundwater-surface water interface
(GSI) criteria; and clean-up criteria will be updated annually by
rulemaking.
Response Activity Review Panel would be
established to address technical issues from Response Activity
Plans or NFA denials; members of this panel will be appointed by
the MDNRE Director, and the Review Panel's decisions would be
subject to final action by the Director and potential judicial
appeal. Petition fees to the Panel will be $3500 per petition.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
